Paul J. Prunty
Henderson, Henderson & Staples Bernard T. Nibert, II
Huntington, West Virginia Prunty Law Offices
Attorney for the Appellants Huntington, West Virginia
Attorney for the Appellees
Ancil G. Ramey
Steptoe & Johnson
Charleston, West Virginia
Attorney for the Intervenor
The Opinion of the Court was delivered PER CURIAM.
2. A valid written instrument which expresses the intent of the parties in plain
and unambiguous language is not subject to judicial construction or interpretation, but will
be applied and enforced according to such intent. Syl. Pt. 1, Cotiga Dev. Co. v. United Fuel
Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1963).
3. If an easement granted be in its nature an appropriate and useful adjunct
of the dominant estate conveyed, having in view the intention of the grantee as to the use of
such estate, and there is nothing to show that the parties intended it as a mere personal right,
it will be held to be an easement appurtenant to the dominant estate. Syl. Pt. 1, Jones v.
Island Creek Coal Co., 79 W. Va. 532, 91 S.E. 391 (1917).
4. Whether an easement is appurtenant or in gross is to be determined by the intent of the parties as gathered from the language employed, considered in the light of surrounding circumstances. Syl. Pt. 2, Post v. Bailey, 110 W. Va. 504, 159 S.E. 524 (1931).
This is an appeal by Wendy Stricklin, William R. Lewis, and Donna Lewis
(hereinafter Appellants) from an order of the Circuit Court of Putnam County granting
summary judgment to Kenneth P. Meadows and Lucille Meadows, his wife (hereinafter
Appellees). The Appellants contend that the lower court erred by concluding that the deed
establishing the easement was ambiguous, in allowing the introduction of extrinsic evidence,
and in determining that the easement was in gross rather than appurtenant. Based upon our
review of the record, briefs, and arguments of counsel, we agree with the Appellants'
contentions and reverse the decision of the lower court.
For the consideration stated above, the parties of the first part further grant and convey to the parties of the second part, as joint tenants, with rights of survivorship and not as tenants in common, a second easement and right of way 15 feet in width for access to said property to be used by the parties of the second part in common with the parties of the first part and other property owners in said subdivision over and across remaining land of the parties of the first part which second easement and right-of-way shall be adjacent to and along the northerly line of said Lot No. 19 of Sunnybrook Estates and running from the State road to the easterly line of the parcel of land herein conveyed.
The words and other property owners had been stricken from the deed, as indicated above.See footnote 1 1
In August 1961, the Weiskirchers conveyed their property to the Appellees.See footnote 2 2 That deed specifically acknowledged the easements, referencing the fifteen-foot easement as follows:
There is reserved from this conveyance an easement and right of
way 15 feet in width for the exclusive use of the property now
owned by E. H. Keeling and wife, and a part of the said Lot
Nineteen (19), which said easement and right-of-way is adjacent
to and along the northerly line of said Lot No. 19 of Sunnybrook
Estates and running westerly from the said state road to the
By deed dated March 15, 1989, the Keelings conveyed their property to Appellants Mr. and Mrs. Lewis, the parents of Appellant Wendy Stricklin. That deed referenced the easements, providing that the property was conveyed together with the improvements therein and the appurtenances thereunto belonging. . . . The deed also provided that [t]his conveyance is made subject to any and all restrictions, easements, rights of ways contained in the chain of title. Both easements were depicted in a map attached to that 1989 deed.
On January 22, 1997, Appellants Mr. and Mrs. Lewis conveyed the property in question to their daughter, Appellant Wendy Stricklin and her husband Mark Stricklin.See footnote 3 3 That 1997 deed referenced the easements by stating that the property was conveyed together with appurtenances and subject to all easements. Although that deed did not specifically reference the easement widths or precise locations, a second corrected deed did specify the exact easement locations.
Upon obtaining their property, the Stricklins attempted to utilize the fifteen- foot easement across the Appellees' property to access the state road. The Appellees objected to such usage and erected a fence and gate across the easement. The Stricklins filed two separate civil actions challenging the Appellees' conduct, seeking temporary and permanent relief in the form of an order requiring the removal of the fence and gate and seeking to quiet title to the easement.See footnote 4 4 The two actions were consolidated by the lower court on March 17, 1999.See footnote 5 5
By order dated August 19, 1999, the lower court concluded that the striking of the language and other property owners in the Appellants' predecessors' deed rendered that deed ambiguous regarding whether the easement was appurtenant or in gross. The lower court explained as follows:
The Court has determined that the deletion of certain language
from the 1957 deed creates an ambiguity in that it is uncertain,
indefinite, obscure, equivocal, or not clear, so there is doubt as
to the meaning and proper construction thereof. Cotiga
Development Co. v. United Fuel Gas Co., 147 W. Va. 484, 128
S.E.2d 626 (1963).
Having found the document ambiguous, the lower court proceeded to accept extrinsic evidence regarding the intent of the Appellees' predecessors in title. The court considered the affidavits of Mrs. Catherine Weiskircher, one of the original grantors, and Mr. Gary Keeling, the son of the original grantee. Both affidavits indicated that the easement was intended to be personal between the Weiskirchers and the Keelings. Based upon such extrinsic evidence, the lower court concluded that the fifteen-foot easement created in the 1957 deed was in gross, rather than appurtenant, and consequently granted the Appellees' motion for summary judgment. The Appellants appeal that decision to this Court, contending that the easement is appurtenant.
A. Absence of Ambiguity
The Appellants maintain that the lower court erred in determining that deletions contained in the 1957 deed between predecessors in interest created an ambiguity with respect to whether an easement referenced therein was appurtenant or gross. The Appellants assert that the removal of the words and other property owners from the document does not alter the intent of the grantors as it pertains to the Appellants and their predecessor in title. The removal of the words, according to the Appellants, signifies an attempt to exclude non- adjoining property owners, having no effect upon the property then owned by the Keelings and currently owned by Appellant Stricklin. The extraction of the words and other property owners merely specified that the easement was not intended to create a public way for other property owners in said subdivision.
The Appellees maintain that the lower court was correct in ruling that the deed was ambiguous to the extent that removal of the language indicated an intent to limit the usage of the easement in some manner. This Court's evaluation of the language utilized in the deed does not support the conclusion urged by the Appellees. Regarding the intended use of the fifteen-foot easement, the deed provides that the easement will be used for access to said property to be used by the parties of the second part [the Keelings] in common with the parties of the first part [the Weiskirchers] in said subdivision over and across remaining land of the [Weiskirchers]. In the view of this Court, the removal of the words initially contemplated, and other property owners, does not affect the status of the easement as appurtenant or in gross and does not render the easement ambiguous. The establishment of the easement, as set out in the deed, is clear and devoid of any genuine uncertainty. We consequently conclude that the lower court erred by finding that the deed was ambiguous and by permitting the introduction of extrinsic evidence.
In Mays v. Hogue, 163 W. Va. 746, 260 S.E.2d 291 (1979), the owners of the
subservient estate advanced an argument similar to the Appellees' argument in the present
case. The easement in question had been established by predecessors in title, and the
subservient estate owners contended that the easement should be considered personal based
upon the absence of reference to the rights of successors, heirs, or assigns. They maintained
that the easement was applicable only to the original property owners and not transferrable
to subsequent owners. Id. at 748, 260 S.E.2d at 293. The lower court held, and this Court
agreed, that the conveyance was not merely personal in nature. Id. at 748-49, 260 S.E.2d at
293. Implementing the principles of Jones and Post, this Court concluded that in the
absence of a showing that the conveyance was a merely personal right, then the right created
should be considered an easement appurtenant. Id. at 750, 260 S.E.2d at 294. This Court
discerned no showing that the parties intended that the right be a merely personal one and
concluded that the easement was appurtenant rather than in gross. Id.
The deed in the present case did not employ any language indicative of an
intent to create a personal easement.See footnote 6
The deed established an easement for the benefit of the
property now owned by the Stricklins and did not indicate that the easement would be
discontinued upon cessation of ownership by the Keelings. As the Appellants contend, the
stricken language merely clarified that the easement was limited to owners of the dominant
property and did not create a public way for other property owners in said subdivision.
In the absence of language in the deed creating a personal easement and in
accordance with the principles of Mays, the easement is to be characterized as an easement
appurtenant. In this vein, the Appellees forward the inverse argument, contending that the
absence of language regarding the rights of successors or assigns to utilize the easement
should trigger a presumption that the easement is in gross. As the prior cases clearly instruct,
however, that is an incorrect analysis. In Mays, this Court explicitly stated that the absence
of language regarding successors or assigns should not be interpreted to mean that the
easement was in gross rather than appurtenant. Specifically, the Mays Court asserted: It has
been widely held that the omission of such words as 'heirs and assigns' ordinarily does not
tend to show that a grant is personal rather than appurtenant. 163 W. Va. at 750, 260 S.E.2d
at 294. Moreover, as discussed above, this Court specified in Post that an easement will not
be presumed to be in gross when it can fairly be construed to be appurtenant. 110 W. Va.
at 508, 159 S.E. at 526.
Based upon the foregoing, we conclude that the easement in the present case
is an appurtenant easement. We consequently reverse the determination of the lower court
and remand this matter for additional proceedings consistent with this opinion.
Reversed and Remanded with Directions.